Excerpt: - .....hukam chand, kedar nath, hari charan lal and suraj mal defendants was filed on 13-7-1953, against laxmi narain, ganga prasad, manohar lal, and kedar nath, plaintiffs-respondents to which 9 other persons, who were originally defendants, were also made respondents. laxmi narain, ganga prasad, manohar lal and kedar nath filed cross-objections to this appeal on 5-10-1953. laxmi narain died on 1-12-1956, and an application was made by his heirs pooranmal, shrimati gomati devi, and shrimati drav kaur to be brought on record in place of the deceased laxmi narain.this application was presented on 28-2-1957 within 90 days of the death of lakshmi narain. on 2-4-1957, an application was presented on behalf of the appellants also stating that laxmi narain died on 1-12-1956, of which they came to.....

Judgment:

K.L. Bapna, J.

1. The present matter relates to the bringing on record the legal representatives of a deceased respondent.

2. The present appeal by Hukam Chand, Kedar Nath, Hari Charan Lal and Suraj Mal defendants was filed on 13-7-1953, against Laxmi Narain, Ganga Prasad, Manohar Lal, and Kedar Nath, plaintiffs-respondents to which 9 other persons, who were originally defendants, were also made respondents. Laxmi Narain, Ganga Prasad, Manohar Lal and Kedar Nath filed cross-objections to this appeal on 5-10-1953. Laxmi Narain died on 1-12-1956, and an application was made By his heirs Pooranmal, Shrimati Gomati Devi, and Shrimati Drav Kaur to be brought on record in place of the deceased Laxmi Narain.

This application was presented on 28-2-1957 within 90 days of the death of Lakshmi Narain. On 2-4-1957, an application was presented on behalf of the appellants also stating that Laxmi Narain died on 1-12-1956, of which they came to know on 17-3-1957, and although an application was made by the heirs of Laxmi Narain in their cross-objections, they were also advised to move a formal application, and for that reason the application was made for bringing on record the legal representatives of Laxmi Narain in the appeal.

On behalf of Pooran Mal, one of the legal representatives of Laxmi Narain, an affidavit was filed that two of the appellants lived in the same town as the deceased, and had come to know of the death of Laxmi Narain on the day of the occurrence, and it was contended that the application to bring on record the legal representatives of Laxmi Narain inthe appeal was time-barred, and for that reason should be dismissed. It was then urged that the appeal had abated because the legal representatives of one of the plaintiffs-respondents was not brought on record. Two other applications were also submitted. One was that respondents Nos. 2, 3 and 4, as also the legal representatives of respondent No. 1 were not desirous of prosecuting their cross-objections, and they may be permitted to be withdrawn and dismissed.

3. The question, which arises for decision, is where an application is presented by the heirs of the deceased respondent in the cross-objections filed by the respondent, whether the advantage of such application can be taken by the appellant, and the bringing on record of the legal representatives of the respondent in the cross-objections will purport to bring on record the said representatives of the respondent in the appeal also. A direct authority on the point is to be found in the case of Venkatacha-riar v. P. Ponappa Ayyengar AIR 1919 Mad 1026 (A).

It was held in that case that the omission by an appellant to bring on record the legal representative of a deceased respondent would not cause the abatement of the appeal if the latter, on his own initiative, had brought himself on the record in the memorandum of cross-objections filed by the deceased, and the effect of the legal representative being added in the memorandum of objections was, in effect, to make him a party to the appeal. The reason for this decision is stated to be that the appeal and memorandum of objections are not disconnected and independent proceedings but are part of the same proceedings. Reliance was placed on Brij Indar Singh v. Lala Kanshi Ram, AIR 1917 PC 156 (B). Brij Indar Singh's case was slightly on a different footing, as the application was submitted in an interlocutory matter, but the observations were that the introduction of a plaintiff or a defendant at one stage of a suit is an introduction for all stage.

The principle was certainly applicable because the cross-objections are in the appeal, and if the heirs of the deceased respondent of their own accord come forward for being brought on record, they will be so brought on record both for purposes of the cross-objections and the appeal. This Madras case was followed by the same High Court in Kanthi-mathi Ammal v. R. Perumal Kona, AIR 1925 Mad 777 (C). Some support is also found by the observations in the Full Bench case of the Lahore High Court in Labhu Ram v. Ram Partap, AIR 1944 Lah 76 (D), where it was observed that the cross-objections are always preferred to an appeal that is pending and the title of the cross-objections remains the same as that of the appeal.

It did not matter if the names of some of the parties are not contained in the memorandum of cross-objections. That might be a defect but not fatal to the cross-objections. With great respect we agree with the decision in Vehkatachariar v. Ponappa Ayyengar (A), and the application, which was submitted by Pooran Mal, Shrimati Drav Kaur and Shrimati Gomati Devi for bringing them on record as the legal representatives of Laxmi Narain will purport to bring on record the same heirs in the appeal also. That application was within time, and, therefore, no question of abatement arises.

4. Pooranmal, Shrimati Drav Kaur and Shrimati Gomati Devi will be brought on record in the appeal and also in the cross-objections in place ofthe deceased respondent.

5. In view of the fact that the respondents in the cross-objections now decide to withdraw their cross-objections, they are dismissed. The appeal will be set down for hearing.